J-S19007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NACOLA DARCEL FRANKLIN

Appellant No. 599 EDA 2014

Appeal from the Judgment of Sentence entered July 16, 2013

In the Court of Common Pleas of Lehigh County

Criminal Division at No: CP-39-CR-0004098-2012

BEFORE: STABILE, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2015

Appellant NaCola Darcel Franklin appeals from the judgment of 

sentence entered in the Court of Common Pleas of Lehigh County (“trial 

court”), following her jury conviction for first degree murder. Upon review, 

we affirm the judgment of sentence.

The trial court summarized the facts of this case as follows:

Appellant was engaged to marry Billy Brewster. The 

wedding was scheduled for 10:00 a.m. on August 11, 

2012. Brewster’s cousin, Nakia Kali, and Kali’s wife Monique 

flew in from Chicago to attend the wedding. The Kalis were 

staying with Appellant and Brewster the night before the 

wedding.

 In the afternoon of August 10, 2012, the Kalis arrived at 

Brewster’s apartment. Appellant arrived shortly after the 

Kalis. At or around 4:00 p.m., Nakia Kali and Brewster left the 

apartment to get food from a diner. When they returned, 

Appellant was out shopping. Appellant, Monique Kali, Appellant’s 

mother, and Appellant’s niece India went out to a nearby mall to 

purchase a dress for India. 

 At approximately 9:00 p.m., Nakia, Monique, and Brewster 

left the apartment to go to a local strip club. Nakia testified that 
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Appellant was frustrated and anxious about the wedding 

preparations for the following day. At the gentlemen’s club, 

Nakia observed Brewster consume “two drinks and a beer.” The 

three left the club after a few hours, stopped at a restaurant but 

did not order food because Nakia was suffering from a headache, 

and returned to the apartment. 

Upon returning to the apartment, the Kalis went to a 

bedroom that was prepared for them. This room was adjacent 

to the bedroom shared by Appellant and Brewster. Nakia Kali 

testified he overheard Brewster and Appellant bickering outside 

their bedroom and could see Brewster through an open 

doorway. Eventually, Brewster went into his bedroom with 

Appellant and shut the door. Nakia testified he continued to 

overhear arguing [sic] between Brewster and Appellant. 

 Shortly after 2:00 a.m., Appellant called 911 to request 

help. On the 911 tape, Appellant and Brewster can be clearly 

heard arguing with one another. Appellant yells [sic] to her son 

Anthony to get her a knife. At this time, Nakia came out from 

the bedroom to find out what was transpiring. Nakia observed 

Brewster standing with his back to the front door and Appellant 

standing approximately seven or eight feet in front of Brewster 

holding a knife. On the 911 tape, Appellant repeatedly told 

Brewster to “give me my baby.” She is heard telling Brewster he 

is “fuckin’ drunk.” She also admonishes Brewster to “put my 

baby down,” “give me my fuckin’ baby,” and threatened him by 

yelling, “You know I’ll swing at your dumb ass!” Nakia 

attempted to diffuse the situation by separating Appellant and 

Brewster and telling Appellant not to do this. During this 

argument, India took the baby, BJ, and walked away from the 

situation. Nakia tried to calm Appellant down as Brewster stood 

by the door, and he repeatedly asked Appellant to just let him 

take Brewster out of the apartment. On the 911 tape, Appellant 

can clearly be heard screaming “Die!” and threatening to stab 

Nakia. Appellant can also be heard threatening Brewster, 

saying, “Fucking die tonight. You wanna die tonight?” The initial 

911 call ends shortly after that. 

Nakia testified that at this time, he yelled at Brewster to 

get out. Brewster had his hands up with his palms facing 

outward. Nakia turned his head away from Appellant to push 

Brewster out the nearby door, and when he looked away, 

Appellant lunged at Brewster with the knife and stabbed him 

approximately three times. Nakia grabbed Brewster and took 

him outside onto the landing for the stairwell. He observed that 

Brewster was bleeding from his chest in the area of his 

lung. Once Nakia got Brewster outside, he yelled to India, who 

was still inside the apartment, to get him a towel. India did not 

get Nakia a towel to use on Brewster prior to him closing his 

eyes and becoming nonresponsive. 

Back inside the apartment, Monique wrestled Appellant to 

the ground with Appellant still holding the knife. Monique told 
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Nakia to take the knife, which Nakia did after prying the knife 

out of Appellant’s hand. Nakia threw the knife to the ground and 

India picked it up and hid it in the kitchen. 

A second 911 call was placed by Appellant within minutes 

of the first. Appellant advised the dispatcher that her boyfriend 

just beat her up and stole her baby. She also indicated 

Appellant needed an ambulance because she cut him for trying 

to take her baby. 

Whitehall Township Police Officer Matthew Reszek was 

dispatched to Appellant’s apartment at approximately 2:19 

a.m. The initial dispatch was for a drunk male attacking a 

female. Before he arrived at the scene, Reszek received updated 

information which indicated a knife was involved and the female 

cut the male with the knife. He arrived four minutes later. From 

the outside looking into the apartment building, Officer Reszek 

observed what appeared to be feet dangling over the top step of 

a common stairwell inside the building. He entered the 

apartment building and called up to Brewster, who was lying on 

the top landing of the stairwell in the apartment, but Brewster 

did not respond. 

Officer Reszek ascended the stairs and approached 

Brewster. Reszek observed Brewster’s legs moving very 

slightly. Brewster was lying prone on his face and breathing 

slightly. Reszek testified Brewster appeared unconscious and 

was bleeding from a wound on the left side of his body. He 

contacted the Communications Center while putting on latex 

gloves from his belt and told the dispatcher to have the 

responding ambulance expedited. 

While Officer Reszek was still putting on his latex gloves, 

the door to Apartment Number 7 opened and William Brewster, 

Billy Brewster’s minor son, stepped out into the common 

area. Reszek could hear both adults’ and children’s voices 

coming from inside the apartment. Officer Reszek asked William 

who the person on the ground was and William responded, 

“That’s my dad.” William retreated into the apartment and shut 

the door.

Once other officers arrived on scene, Officer Reszek 

proceeded inside the apartment. Officer Reszek encountered 

Nakia Kali, Monique Kali, Appellant, and several minor 

children. Appellant was seated on the couch inside the 

apartment with Monique Kali. Officer Reszek observed Appellant 

was visibly upset. Officer Reszek asked directly about the 
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location of the knife. India Franklin, Appellant’s teen daughter[1]

indicated she hid it in the kitchen and took Officer Reszek to the 

location where she had hidden it in a cabinet underneath the 

sink. Officer Reszek retrieved the knife and took it into 

evidence. 

An autopsy showed Brewster died of stab wound to the 

heart. The manner of death was homicide. Dr. Isidore 

Mihalakis, who performed the autopsy, testified that Brewster’s 

hands had defensive wounds indicative of a struggle. Mihalakis 

also testified that Brewster had a .13% blood alcohol level at the 

time of his death. 

Trial Court Opinion, 8/25/14, at 1-6. On August 11, 2012, Appellant was 

charged with criminal homicide. Following a three-day trial, a jury convicted 

Appellant of first-degree murder on May 23, 2013.2 On July 16, 2013, the 

trial court sentenced Appellant to life in prison without the possibility of 

parole. On July 26, 2013, Appellant filed a post-sentence motion requesting 

a new trial, arguing, inter alia, that the jury’s verdict was against the weight 

of the evidence. On January 10, 2014, the trial court issued an opinion and 

order, denying Appellant’s post-sentence motion. Appellant timely appealed 

to this Court. 

In her lengthy Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal, Appellant repeated the argument that the jury’s verdict was against 

the weight of the evidence. Specifically, Appellant argued she lacked the 

____________________________________________

1 Appellant testified India Franklin was her niece who relocated from 

California to live with her in Whitehall. N.T. Trial, 5/22/13, at 163-64. 

2 The record indicates that prior to trial Appellant rejected a plea offer for 

third-degree murder, which would have carried a negotiated minimum of 

sentence of 13 years’ imprisonment. See N.T. Trial, 5/21/13, at 8. There 

was no agreement on the maximum sentence. Id.
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specific intent to kill the victim. The trial court issued a Pa.R.A.P. 1925(a) 

opinion, concluding that the testimony presented at trial, Appellant’s 

statements to the victim on the 9-1-1 recording and her stabbing the victim 

multiple times militate against her weight of the evidence argument.

On appeal, Appellant raises only a single issue for our review: 

“Whether the [t]rial [c]ourt erred when it denied [] Appellant’s postsentence motion for a new trial based on the verdict of First-Degree Murder 

being contrary to the weight of the evidence.” Appellant’s Brief at 2. 

We review weight-related issues as follows:

The weight given to trial evidence is a choice for the factfinder. 

If the factfinder returns a guilty verdict, and if a criminal 

defendant then files a motion for a new trial on the basis that 

the verdict was against the weight of the evidence, a trial court 

is not to grant relief unless the verdict is so contrary to the 

evidence as to shock one’s sense of justice.

When a trial court denies a weight-of-the-evidence motion, and 

when an appellant then appeals that ruling to this Court, our 

review is limited. It is important to understand we do not reach 

the underlying question of whether the verdict was, in fact, 

against the weight of the evidence. We do not decide how we 

would have ruled on the motion and then simply replace our own 

judgment for that of the trial court. Instead, this Court 

determines whether the trial court abused its discretion in 

reaching whatever decision it made on the motion, whether or 

not that decision is the one we might have made in the first 

instance.

Moreover, when evaluating a trial court’s ruling, we keep in mind 

that an abuse of discretion is not merely an error in judgment. 

Rather, it involves bias, partiality, prejudice, ill-will, manifest 

unreasonableness or a misapplication of the law. By contrast, a 

proper exercise of discretion conforms to the law and is based on 

the facts of record.

Commonwealth v. Street, 69 A.3d 628, 633 (Pa. Super. 2013) (internal 

citation omitted). Because of the above standard, a trial court’s decision to 

grant or deny a new trial based on the weight of the evidence is one of the 
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least assailable of its rulings. Commonwealth v. Antidormi, 84 A.3d 736, 

758 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014).

To obtain a conviction of first degree murder, the 

Commonwealth must prove that a human being was unlawfully 

killed, that the defendant perpetrated the killing, and that the 

defendant acted with malice and a specific intent to kill. Section 

2502 of the Crimes Code defines murder of the first degree as an 

“intentional killing,” 18 Pa.C.S. § 2502(a), which, in turn, is 

defined as a “[k]illing by means of poison, or by lying in wait, or 

by any other kind of willful, deliberate and premeditated killing.” 

Id. at § 2502(d). It is well-settled that specific intent to kill can 

be established through circumstantial evidence such as the use 

of a deadly weapon on a vital part of the victim’s body. 

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation 

omitted), cert. denied, 135 S.Ct. 145 (2014).

Here, in support of her weight of the evidence argument, Appellant 

points out that the trial court abused its discretion for two reasons. First, 

Appellant argues that she stabbed the victim only once on a vital part of his 

body and that the trial court was wrong in concluding that she had done so 

twice. See Appellant’s Brief at 17. Second, Appellant argues that the trial 

court did not consider the entire transcript of the 9-1-1 call and based its 

decision only on portions of the transcript unfavorable to her. See id. 

In reviewing the first part of Appellant’s claim, we conclude the trial 

court did not abuse its discretion. The number of times Appellant used a 

deadly weapon on a vital part of the victim’s body is of no consequence. 

What is important is that Appellant stabbed the victim with a knife on a vital 
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part of his body, thereby causing his death.3 Here, the jury heard, inter alia, 

medical testimony, from which it inferred that Appellant had the specific 

intent to kill. See Commonwealth v. VanDivner, 962 A.2d 1170, 1176 

(Pa. 2009) (finding that the jury properly could infer specific intent from 

Appellant’s use of a handgun upon the victim’s head), cert. denied, 

VanDivner v. Pennsylvania, 559 U.S. 1038 (2010); Commonwealth v.

Chamberlin, 30 A.3d 381, 394 (Pa. 2011) (citation omitted) (stating, 

“[s]pecific intent to kill can be inferred by the use of a deadly weapon upon a 

vital part of the body[]”), cert. denied, Chamberlin v. Pennsylvania, 132 

S. Ct. 2377 (2012). Based on the undisputed evidence that Appellant 

stabbed the victim with a knife on a vital part of his body, the jury inferred 

Appellant had a specific intent to kill. 

In reviewing the second part of Appellant’s claim, we also do not find 

the trial court abused its discretion. Appellant essentially argues the 9-1-1 

____________________________________________

3 Dr. Mihalakis testified at trial:

There are two stab wounds. The first is just below into the left 

of the left nipple. It is an inch and a quarter long, and it 

perforates the chest wall, enters into the chest, perforates the 

left upper lobe of the lung, perforates the heart sac, and then 

perforates the right ventricle and stops after penetrating about 

three quarters of the thickness of the interventricular septum.

 . . . .

Well, this is very lethal because it goes through a vital portion of 

the body; one, left lung, and secondly, the heart.

N.T. Trial, 5/22/13, at 95-96.
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recording, when reviewed in its entirety, would demonstrate that Appellant 

did not intend to kill the victim. In support of this contention, Appellant 

asserts:

The 9-1-1 tape/transcript must be viewed in its totality and in 

conjunction with the physical interaction between [Appellant] 

and [the victim] after [the victim] returns home at 1:30 a.m. 

[The victim’s] assaultive behavior against [Appellant], his 

forceful taking of the couple’s infant child while in an intoxicated 

rage, and the physical combat or struggle with [Appellant] both 

in the bedroom and by the front door are supported, in part, by 

the testimony of Dr. Mihalakis, who opined that “the wounds to 

the victim were indicative of a struggle . . . more indicative of a 

hand-to-hand combat of some sort.”

Appellant’s Brief at 17-18.

Here, the record indicates the jury not only heard the 9-1-1 recording 

but also received a transcript of the recording for purposes of reading along. 

See N.T. Trial, 5/23/13, at 101-04. Based on its review of the 9-1-1 

recording and other evidence presented, the jury was free to resolve any 

conflict in evidence against Appellant. Indeed, the jury, as a trier of fact, 

determines the credibility of witnesses and resolves any conflict or 

inconsistencies in the evidence. See Commonwealth v. Cruz-Centeno, 

668 A.2d 536, 541 (Pa. Super. 1995).

Given our review of the entire record, we conclude that the trial court 

did not abuse its discretion in denying Appellant’s motion for a new trial. 

Specifically, as the trial court noted:

The uncontradicted testimony at trial is that Appellant and [the 

victim] got into a verbal confrontation which led to Appellant 

specifically instructing her minor son to “get her a knife,” and he 

obliged. This instruction can be heard on the 911 tapes 

introduced into evidence. Likewise, Appellant’s recorded 

statements to [the victim] as captured on the 911 tape included, 
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“I’m gonna fucking kill you,” “Yes, I swear I am going to cut 

you,” “Die! Die!,” and “Fucking die tonight, gonna die tonight!” 

All of this evidence taken in conjunction with the fact that 

Appellant did in fact stab [the victim] twice with the knife to a 

vital part of [the victim’s] body supports the jury’s determination 

that Appellant acted with specific intent to kill.

. . . .

In reviewing Appellant’s post-sentence motion, [the trial 

court] properly considered the totality of the circumstances in 

determining if the jury’s verdict would shock the conscience. 

Appellant’s own words and actions, including obtaining a knife 

which would become the murder weapon, support a conclusion 

that she wanted to kill [the victim].

Trial Court Opinion, 8/25/14, at 11, 13. Accordingly, Appellant is entitled to 

no relief on this claim.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2015